05-000754 Francisco Luis Ingunazo vs. Department Of Financial Services Status: Closed Recommended Order on Thursday, June 30, 2005.

Summary: Petitioner, as a convicted felon, is not eligible for licensure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANCISCO LUIS INGUANZO, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0754

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice a formal hear ing was held in this case

on April 26, 2005, by video teleconference with the Petitioner

appearing from Miami, Florida, before J. D. Parrish, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Julio R. Ferrer Roo, Esquire

Julio R. Ferrer Roo, P.A.

8360 West Flagler Street, Suite 203A

Miami, Florida 33144

For Respondent: Dana M. Wiehle, Esquire

Depar tment of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

STATEMENT OF THE ISSUE

Whether the Petitioner, Francisco Luis Inguanzo

(Petitioner) , is entitled to have his application for

licensure approved.

PRELIMINARY STATEMENT

This case resulted from the denial of Petitioner’s

application for licensure as a resident public all lines

insurance adjuster. On December 30, 2004, the Respondent,

Depar tment of Financial Services (Respondent or Department),

issued a letter denying the Petitioner’s application for

licensure. Thereafter, the Petitioner timely sought an

administrative review of that decision and the matter was

forwarded to the Division of Administrative Hearings on

February 28, 2005, for formal proceedings.

At the hearing conducted on April 26, 2005, the

Petitioner testified on his own behalf. The Respondent’s

Exhibits 1 - 7 were admitted into evidence. The transcript of

the proceeding was filed on May 6, 2005. Thereafter, the

Respondent timely submitted a Proposed Recommended Order that

has been considered in the preparation of this order. The

Petitioner did not submit a proposed order.

FINDINGS OF FACT

1. The Petitioner, Francisco Luis Inguanzo, is an

applicant for licensure as a resident public all lines

insurance adjuster. He filed an application with the

Respondent on or about September 20, 2004.

2. The Department is the state agency charged with the

responsibility of regulating lic ensees and applicants for

licensure such as the Petitioner. As such, the Respondent

must interpret and administer the provisions of Chapter 626,

Florida Statutes (2004).

3. The application for licensure includes several

questions that applicants must com plete. More specifically,

applicants must disclose law enforcement records and, to that

end, the Department poses the following question:

Have you ever been convicted, found guilty,

or pled guilty or nolo contendere (no

contest) to a felony or crime punis hable by

imprisonment of one (1) year or more under

the laws of any municipality, county,

state, territory or country, whether or not

adjudication was withheld or a judgment of

conviction was entered? Yes/No

4. The response the Petitioner provided to th e foregoing

question was in the negative (that is “No”).

5. When the Department reviewed the Petitioner’s

criminal history, however, it was discovered that the

Petitioner was arrested and pled guilty to carrying a

concealed firearm, a third - degree felony. The Petitioner did

not accurately disclose the foregoing arrest and conviction

6. Moreover, the Petitioner did not provide a credible

explanation for why he failed to accurately answer the

application question.

7. The criminal charges against this Pet itioner were

resolved on September 10, 2002. After pleading guilty, the

Petitioner was placed on one - year probation with various terms

to be completed. The Petitioner successfully completed the

terms of his probation on May 30, 2003.

8. At the time he f iled the application in the instant

matter, the Petitioner knew or should have known that he had

been charged with a serious crime, that he had resolved the

criminal case, and that he was no longer on probation.

9. The Petitioner did not fully disclose hi s criminal

record to the Department.

10. The Department’s application form makes it clear

that the applicant’s criminal history must be disclosed.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of

these proceedings. §§ 120.569 and 120.57(1), Fla. Stat.

(2004).

12. As the applicant, the Petitioner bears the burden of

proof in this case to establish he is entitled to the license

sought. The Petition must establish he meets all eligibility

criteria to become licensed by a preponderance of the

evidence. See Florida Department of Transportation v. J.W.C.

Co. Inc. , 396 So. 2d 778 (Fla. 1 st DCA 1981).

13. Section 626.611, Florida Statutes (2004), provides,

in pertinent part:

Grou nds for compulsory refusal, suspension,

or revocation of agent's, title agency's,

adjuster's, customer representative's,

service representative's, or managing

general agent's license or appointment . --

The department shall deny an application

for, suspend, r evoke, or refuse to renew or

continue the license or appointment of any

applicant, agent, title agency, adjuster,

customer representative, service

representative, or managing general agent,

and it shall suspend or revoke the

eligibility to hold a license o r

appointment of any such person, if it finds

that as to the applicant, licensee, or

appointee any one or more of the following

applicable grounds exist:

(1) Lack of one or more of the

qualifications for the license or

appointment as specified in this co de.

(2) Material misstatement,

misrepresentation, or fraud in obtaining

the license or appointment or in attempting

to obtain the license or appointment.

* * *

(7) Demonstrated lack of fitness or

trustworthiness to engage in the business

of insurance.

* * *

(14) Having been found guilty of or having

pleaded guilty or nolo contendere to a

felony or a crime punishable by

imprisonment of 1 year or more under the

law of the United States of America or of

any state thereof or under the law of any

other cou ntry which involves moral

turpitude, without regard to whether a

judgment of conviction has been entered by

the court having jurisdiction of such

cases.

14. Section 626.621, Florida Statutes (2004) provides,

in part:

Grounds for discretionary refusal,

s uspension, or revocation of agent's,

adjuster's, customer representative's,

service representative's, or managing

general agent's license or appointment . --

The department may, in its discretion, deny

an application for, suspend, revoke, or

refuse to renew o r continue the license or

appointment of any applicant, agent,

adjuster, customer representative, service

representative, or managing general agent,

and it may suspend or revoke the

eligibility to hold a license or

appointment of any such person, if it fin ds

that as to the applicant, licensee, or

appointee any one or more of the following

applicable grounds exist under

circumstances for which such denial,

suspension, revocation, or refusal is not

mandatory under s. 626.611.

(3) Violation of any lawful orde r or rule

of the department, commission, or office.

* * *

(8) Having been found guilty of or having

pleaded guilty or nolo contendere to a

felony or a crime punishable by

imprisonment of 1 year or more under the

law of the United States of America or of

any state thereof or under the law of any

other country, without regard to whether a

judgment of conviction has been entered by

the court having jurisdiction of such

cases.

15. Florida Administrative Code Rule 69B - 211.041

provides, in part:

(3) “Crime o f Moral Turpitude” refers to

each felony crime identified in subsection

69B - 211.042(21), F.A.C

(4) “Criminal record,” for purposes of

this rule part, includes any felony charge

filed against the applicant in the courts

of any state...on any subject wheth er

related to insurance or not, concerning

which charge the applicant was found

guilty, or pled guilty, or pled nolo

contendere , regardless of whether or not

there was an adjudication by the court, and

regardless of whether the matter is under

appeal by th e applicant. The phrase

includes such charges even where the crime

was subsequently pardoned or civil rights

have been restored.

16. Rule 69B - 211.042, Florida Administrative Code

provides in part:

(2) Duty to Disclose Law Enforcement

Record. Every app licant shall disclose in

writing to the Department the applicant’s

entire law enforcement record on every

application for licensure, as required

therein, whether for initial, additional,

or reinstatement of licensure. This duty

shall apply even though the material was

disclosed to the Department on a previous

application submitted by the applicant.

(3) Policy Specifically Concerning Effect

of Criminal Records.

(a) The Department interprets Sections

626.11(14) and 626.621(8), Florida

Statutes, which sub sections relate to

criminal records, as applying to license

application proceedings. The Department

interprets those statutes as not limiting

consideration of criminal records to those

crimes of a business - related nature or

committed in a business context . More

specifically, it is the Department’s

interpretation that these statutes include

crimes committed in a non - business setting,

and that such crimes are not necessarily

regarded as less serious in the license

application context than are crimes related

to business or committed in a business

context.

* * *

(4) Effect of Failure to Fully Disclose

Law Enforcement Record on Application.

(a) The Department finds that all matters

that are part of an applicant’s law

enforcement record are material element s of

the application, and finds that the

omission of any part of the law enforcement

record required to be disclosed on the

application is a material misrepresentation

or material misstatement in and of itself.

The applicant shall have violated Section

62 6.611(2) or 626.621(1), Florida Statutes,

if the applicant fails to provide the

Department with the documentation required

by this rule.

(b)1. If an applicant fails to fully and

properly disclose the existence of law

enforcement records, as required by t he

application, the application will be denied

and a waiting period will be imposed before

the applicant may reapply for any license.

* * *

3. The waiting period shall begin on the

later of:

a. The date that the Department issues a

letter or notice of denial of the

application, or

b. The date that a previously imposed

waiting period expires.

4. The waiting period shall be calculated

as follows:

a. Class A or B crime omitted, where the

trigger date was more than 10 years before

the time of applica tion, add 1 year. If

the trigger date was 10 years prior, or

less than 10 years prior, to the time of

the application, add 2 years.

* * *

(7) Classification of Felony Crimes.

(a) The Department makes a general

classification of felony crimes into thr ee

classes: A, B and C, as listed in

subsections (21), (22), and (23) of this

rule.

* * *

(8) Required Waiting Periods for a Single

Felony Crime. The Department finds it

necessary for an applicant whose law

enforcement record includes a single felony

crime to wait the time period specified

below (subject to the mitigating factors

set forth elsewhere in this rule) before

licensure. All waiting periods run from

the trigger date.

(a) Class A Crime. The applicant will not

be granted licensure until 15 years have

passed since the trigger date.

* * *

(21) Class “A” Crimes include all those

listed in this subsection, where such

crimes are felonies, and all are of equal

weight notwithstanding from which

subparagraph they are drawn. The

Department finds that each felony crime

listed in this subsection is a crime of

moral turpitude.

* * *

(w) Carrying a concealed weapon/firearm.

17. The record in this matter is undisputed. The

Petitioner pled guilty to a felony, a crime (by definition) of

moral turpi tude. The Petitioner failed to disclose the

criminal history on his application for licensure, and 15

years have not passed since the trigger date for that crime.

18. It is the Petitioner’s burden of proof to establish

he is entitled to the license sou ght. He has failed to meet

that burden. Even if it were credible that the Petitioner

misunderstood the question asked on the application (and

thereby by inadvertence failed to accurately answer the

questionnaire), the underlying fact remains: Petitioner

committed a felony constituting moral turpitude. Moreover,

the time period to wait for licensure has not passed. As

such, the Petitioner lacks qualification for the license

sought as a matter of law.

19. Additionally, since the Petitioner made a materi al

misrepresentation on the application (he failed to disclose

the criminal history), he is not entitled to the license

sought.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Department of Financi al

Services enter a Final Order denying the Petitioner’s

application for licensure.

DONE AND ENTERED this 30th day of June, 2005, in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th d ay of June, 2005.

COPIES FURNISHED :

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Carlos G. Muniz, General Counsel

Department of Financial Services

The Capi tol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Dana M. Wiehle, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399

Julio R. Ferrer - Roo, Esquire

Julio R. Ferrer Roo, P.A.

8360 West Flagler Street, Suite 203A

Miami, Florida 33144

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any

exceptions to this Recommended Order should be filed with the

agency that will issue the Final Order in this case.